Judicial Function Research Articles

The Dayton Agreement and social reform: Omne principium difficile est

The Dayton Agreement rests on the principle of establishing a self-sustaining system that respects the multinational and multiconfessional structure of the population of Bosnia and Herzegovina, composed of entities with independent constitutive, legislative, executive and judicial functions. The organisation and functioning of the constitutionally-determined institutions of power in BiH is based on the constituent nature of the nations, enclosed in amendments to the entity constitutions made after the 2000 Decision of the Constitutional Court on the Constituency of Peoples, which regulate representation and the manner of the protection of the interests of the peoples. This article proceeds from the point that vital discussion on constitutional regulation is leading to a marginalisation of the discussion on harmonising domestic legislation with the EU acquis, conditio sine qua non in terms of fulfilling the requirements of the Stabilisation and Accession Agreement, not least in the area of labour law, and gaining admission to the EU. Above all, society is only changed through reform in which - panta rei - everything flows.

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

The Supreme Court decision in the now-infamous case Francis Karioko Muruatetu v Republic1 seemed to settle the enduring debate whether sentencing is a judicial or a legislative function. The court’s ruling was that sentencing is a judicial function and that the mandatory nature of the death penalty for murder2 was unconstitutional because it took away the courts’ discretion to determine a just and proportionate punishment to impose on a convicted person. In its judgment, the court ordered that the judiciary sentencing policy3 be revised to reflect the court’s guidelines on the obligation of courts to listen to the accused’s mitigation before sentencing. The court also directed that a framework for sentence rehearing be prepared immediately to allow applicants who had been sentenced in circumstances similar to those of the petitioners to apply for sentence a rehearing from the trial court. This article examines the aftermath of this judgment in terms of whether the Supreme Court’s decision helped to cure the challenge that lies in the current sentencing process; achieving coherence and proportionality in the sentencing process. By using jurisprudential arguments, we intend to demonstrate that, despite the court’s direction to all courts to ensure that no person should be subjected to a disproportionate sentence, the problem of disproportional sentencing is one that goes beyond merely reviewing of the sentencing guidelines but also demands a reform of the entire criminal justice system.

Bureaucratic Capacity of the Public Administration: Judiciary Function of Ecuador in the Pandemic

Bureaucratic capacities variable (effect) changed by government measures (cause) as a result of the health emergency. It displaced the bureaucratic capacities towards a new reality with its effect on institutional performance. It aimed to analyze the current state and the effect of the measures adopted during the pandemic on the bureaucratic capacities of the judicial function. The research is qualitative and transversal. Information was obtained by two sources. The first was a semi-structured interview applied using convenience sampling; the second was a documentary inquiry. Information was processed according to the bureaucratic capacities in public administration. It was analyzed a causal relationship supported in the logical-deductive perspective to build knowledge. The challenges faced by the Judicial Council were analyzed in four dimensions: deconcentrating, institutional expansion, social participation and performance evaluation. A theoretical argument was developed as a basis for analysis. It was analyzed under the cause-effect logic the impact of government measures on bureaucratic capacities. The bureaucratic capacities due to governmental measures in the judicial function are close to the limit of its functionality as an institution, which compromises its services in the present and it possible collapse in a future.

СУДЕБНЫЕ ПОЛНОМОЧИЯ НАЧАЛЬНИКА ЦЕНТРА КАВКАЗСКОЙ ЛИНИИ В 30-50-Е ГГ. XIX ВВ.

This article is about the dynamics of the judicial powers of the head of the Center for the Caucasian Line in the 30s – 50s. XIX century. A general overview of the activities of the head of the Caucasian Line Center is given. The study is based on an analysis of the administrative documents of the Caucasian Line Center and subordinate organizations. Attention is drawn to his order of interaction with subordinate institutions of local judicial and administrative control. The features of the administration of justice in the process of interaction between representatives of the local population and the Caucasian line command are analyzed. The article analyzes the set of judicial powers of the head of the Center, the nature of the cases subject to his jurisdiction. The judicial functions of the head of the Center are considered within the framework of the judicial and administrative system that took shape in the Caucasus in the second quarter of the 19th century. Attention is drawn to the fact that the granting of judicial powers to representatives of executive structures was characteristic of most of the national outskirts of the empire and corresponded to the level of development of the Russian legal culture of that time. Attention is drawn to its role in regulating the activities of the Provisional Kabardinsky Court, the judicial functions performed in the framework of interaction with bailiff institutions, the role of the head of the Center in regulating the activities of traditional bodies of administration of justice both among the indigenous population of the Central Caucasus and among migrants (residents of the Aleksandrovskaya German settlement and the Nalchik mountain Jewish colony). It is concluded that the execution of a number of judicial powers by the head of the Caucasian Line Center was explained by the low efficiency of the institutions of local judicial and administrative control, the difficulties of adapting local residents to the Russian presence in the region, and the search for optimal management models.

Podstawowe aspekty wykładni prawa w chińskim porządku prawnym

Basic aspects of legal interpretation in the Chinese legal order Chinese legal culture was shaped in a different way than Western legal culture, these differences have a significant impact on the rule of law, fundamental rights and democracy in contemporary China. Legal interpretation is one of the formal sources of law in China. The authority to interpret legislation is usually characterized as a legislative rather than a judicial function. The Standing Committee of the National People’s Congress (NPC), the State Council and the Supreme People’s Court have a special role in interpretive activities. Chinese legal interpretation includes semantic rules, the cultural and linguistic context of law, basic constitutional principles, the hierarchy of sources of law and reasoning by analogy.

Magistrates’ Travelling Libraries: The Circulation of Normative Knowledge in the Portuguese Empire of the Late 18th Century

The pluricontinental Portuguese judicial administration was characterized by intensive movement of personnel around and between its dominions, forming a global network of rotating judicial posts. Along with these individuals, their books circulated, too. The present study focuses on the lists of books of eleven magistrates appointed to judicial posts in a range of locations throughout Portuguese America between 1799 and 1807. Censorship sources allow us to identify the books chosen by these itinerant magistrates as being indispensable for the exercise of their judicial function. In view of the cost of shipping, the books’ weight and, above all, the temporary character of the functionaries’ posts, judges established travelling libraries, portable collections of essential professional books. Identifying the books selected by judges as the work tools for their overseas judicial activities provides a good idea of the legal literature available in the final years of the Portuguese Ancien Régime. Finally, this investigation sheds light on how – and what kind of – normative information circulated in Portugal’s colonies along with these agents of the Crown.

Structured proportionality, unreasonableness and managing the line between executive and judicial functions

Structured proportionality, unreasonableness and managing the line between executive and judicial functions

Evolution of the Roman Republican Senate: Composition, Election, and Judicial functions (Part 1)

The paper deals with the Roman senatus in the period from 5th to 3rd century BC, from the point of view of its composition, completion and selected competences. As to its composition, in the most arcaic times of the Roman state, the senate was an assembly of the heads of clans (patres gentium), who represented the ideas of patricians. The autor presents gradual transformation of the composition of the senate and switch towards the inclusion of the plebeians. It describes also the process of the cooptation of the members, rules of which incurred fundamental changes from the hereditary principles to the regulation given by statutes. A significant part of the article is devoted to the judicial functions of the Senate and the relationship between the iudicium senatus and the iudicium populi, the transformation of the Senate court from a regional body to the highest, global court of the entire Mediterranean. It’s noted that if the original Roman Senate de iure was the judicial authority only one of the Latin Confederation, later after 338 BC, it becomes the Supreme court of the Latin Union, and by the end of the Republic is transformed into the «Supreme Council of the world».

LAST MAGISTRATE OF NAKHICHEVAN-ON-DON (1865-1870)

By the middle of the XIX century the potential of semiautonomous self-government system of Nakhichevanon-Don with villages, based on the letter of Catherine II, granted in 1779 during the resettlement of Armenians from the Crimea to the Lower Don, was practically exhausted. The magistrate, the mayor and other bodies of public selfgovernment were elected for three years in full accordance with Russian legislation. A consistent attack on the rights and privileges of the Armenian city government, as well as the preparation and implementation of a number of bourgeois-democratic reforms on a national scale, were superimposed on the internal crisis of the Nakhichevan self-government system. By the middle of the XIX century, the service in elective positions in Nakhichevan-on-Don (as in other Russian cities) was perceived not as an honorable duty, but as an onerous duty, which they tried to avoid by all legal means. In this regard, the composition of the magistrate and other self-government bodies constantly needed renewal and replenishment through new elections and the replacement of posts by candidates. The last magistrate of Nakhichevan-on-Don, elected in 1865 (for a three-year period from 1866 to 1868), in connection with the all-Russian reforms, lost police, judicial and other functions. Elections to the new magistrate for the next three years, starting in 1869, in connection with the general decision to abolish magistrates in Russia, were not held. A small part of the powers of the Nakhichevan magistrate was retained by its economic part. In such a truncated form, the last magistrate existed longer than the statutory period. In November 1870, the economic part of the magistrate was subordinated to the mayor with four assistants attached to him. The president of the magistrate and his assessors tried to fulfill their functions further. The Nakhichevan magistrate was finally abolished on July 1, 1871. Thus, Nakhichevanon-Don, having lost the status of a colony with the granted autonomy, turned into an ordinary Russian city.

РЕАЛИЗАЦИЯ ПРАВА ГРАЖДАН НА УЧАСТИЕ В ОТПРАВЛЕНИИ ПРАВОСУДИЯ: ВОЗМОЖНЫЕ ПУТИ РЕФОРМИРОВАНИЯ В УГОЛОВНОМ ПРОЦЕССЕ

The Constitution of the Russian Federation considers the jury as a form of citizens’ participation in the administration of justice, though it was not widely accepted for a long time. Recreated in the early 1990s, the jury trial suffered from limited powers. Subsequently, the range of criminal cases within its jurisdiction became even more limited. The jury expanded its jurisdiction when introduced to district courts in June 1, 2018. On the one hand, the expanded jurisdiction of the jury improves activities of the court and other participants in the criminal process. On the other hand, the changes did not result in the effective exercise of the right of citizens to participate in the administration of justice, which suggests the necessity of the jury’s further expansion. Since it is difficult not to ensure the participation of the jury in minor and medium gravity cases, the increase in the number of cases brought before a jury should occur at the expense of certain types of grave and especially grave crimes. The expansion of the jury competence on grave and especially grave crimes will not be a final solution to the problem of involving citizens in the administration of justice. In contrast to Soviet Russia, where popular representatives (lay judges) exercised control over the judges in all criminal cases at first instance, today, in most cases, justice is administered by judges alone. The people’s court has advantages over the sole consideration of the case, as it ensures open justice, increases the responsibility of professional participants in the process, and raises the prestige of performing judicial functions. It is possible to return lay judges to district courts for non-grave and medium-grave cases implying custodial punishment. Thus, the effective implementation of the constitutional right of citizens to participate in the administration of justice can be achieved through various forms. Expanding the jury’s competence at the expense of certain types of grave and especially grave crimes, the introduction of lay judges for non-grave and medium-grave crimes implying custodial punishment will promote a broader participation of citizens in the administration of justice.

Democracy, Distrust, and Judicial Umpiring in the G-20 Nations

article examines John Hart Ely's theory of judicial review set forth forty-one years ago in: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980). In particular, it examines Ely's claim that it is normatively desirable for courts to police the political processes of change to keep them open to political outsiders and that this is in fact one thing Supreme Courts, or Constitutional Courts, do. I show that the U.S. Supreme Court has continued to play this umpiring role since 1980, although often in ways John Hart Ely may not have approved of. I then comparatively examine the judicial review systems of: 1) the United Kingdom; 2) Germany; 3) Japan; 4) South Africa; 5) Brazil; 6) Canada; and 7) Australia, and I show that in those countries Supreme Courts or Constitutional Courts ubiquitously play the role John Hart Ely describes. This helps to prove that umpiring of the political process does not raise political question but instead is a core judicial function. This essay is forthcoming in Constitutional Commentary.

НАУКОВИЙ ВИСНОВОК кафедри кримінального процесу та криміналістики Навчально-наукового інституту права Київського національного університету імені Тараса Шевченка щодо відповідності Конституції України (конституційності) положень пункту 4 частини першої статті 284 Кримінального процесуального кодексу України (за запитом судді-доповідача В.В. Городовенка)

The role of the court and the parties to the judicial examination of the accused, witnesses and victims under the new Criminal Procedural Code of Ukraine 2012 The article defined the essence of the terms «direct» and «cross examination of witnesses and victims. It is noted that during the trial examination of witnesses have not used the free form of presentation is indicated, but the answers to the questions, and offer a free presentation about the presiding evidence applies only questioning the accused. Prosecutors and defense counsel in the trial of criminal proceedings to ensure performance of their judicial functions of prosecution and defense special attention should be paid to the observance of procedural order, the correct strategy and tactics of direct and cross-examination of witnesses and victims, as in the wider use of elements of competition under the new Code of Ukraine are more likely to receive from the person being questioned necessary information to verify the legal positions of the parties. It is noted that the court does not conduct questioning, but only monitors compliance with the rules of its implementation by the parties. The judge may, in protest parties take matters which do not concern the merits of the criminal proceedings and in case of ambiguity in the testimony of a witness, victim regarding the presence or absence of particular circumstances, to require the witness to a clear answer to the question – «yes» or «no», but ask your questions and the presiding judge can only after the witness put the question victim, civil plaintiff, civil defendant, their representatives and legal representatives or other evidence in the study. The problem of participation of the accused (defendant) in the «direct» and «cross the interrogation of witnesses and victims under the provisions of international conventions and European Court of Human Rights and is a conclusion that the defendant, as it relates to the defense shall have the right, even in the presence of counsel, to take part in the questioning of witnesses and victims.

Democracy and The Inter-American Court of Human Rights: Participation, Opposition and Access to Justice

El texto propone una guía para comprender la idea de democracia subyacente en el Sistema Interamericano de Derechos Humanos. Con base en la noción de poliarquía de Robert Dahl se destacan los principios de participación y oposición. Ambos revelan los ascendientes igualitario y liberal de la democracia que deben orientar la actividad interpretativa de la Corte IDH, más allá de que se traten específicamente casos de derechos políticos. El propósito es visibilizar el ineludible rol público-político de los tribunales. Ello implica revisar la calidad de sus razones, la corrección de sus procedimientos de justificación, y la naturaleza de su autoridad. Por el carácter de la función judicial, se analiza la idea de democracia en conjunción con el derecho humano de acceso a la justicia.

World Health Organization’s dispute settlement in the light of the COVID-19 pandemic: problems and perspectives

In the light of Coronavirus disease pandemic, the question of state responsibility in global health has become actual as never before. Rarely mentioned in the scientific literature, but at the same time, an important problem is the lack of an appropriate dispute settlement body which is competent to consider cases of violation of the World Health Organization’s instructions. The goal of the article is to research different bodies which are potentially competent to resolve disputes regarding violations in the scope of healthcare and to determine the most appropriate one in the light of responsibility of states over the COVID-19 pandemic. The paper analyzes the possibility of resolving a dispute regarding the new pandemic in the International Court of Justice, through arbitration, through negotiations, within an advisory body, and through the World Health Assembly. The article also considers the prospects of other organs of the World Health Organization to perform judicial functions. The paper relies on the analysis of treaty regulations regarding functioning of presented bodies, as well as on enforcement practice of these bodies. Additionally, the authors take into account an attitude of members of the World Health Organization to named bodies. The article shows the advantages and disadvantages of each dispute settlement mechanism. It also develops ways of reforming named bodies to expand their competence to hold states responsible for violations during outbreaks of infectious diseases. The paper concludes that the only body, which is currently able to assign the responsibility of states, is the main organ of the World Health Organization – the World Health Assembly. The absence of an effective way of holding states responsible for violations leads to systematic breaches of their obligations. Today responses of the World Health Organization have become a subject of significant criticism. Furthermore, the World Health Organization’s authority in the international community has been greatly shaken. Thus, effective dispute settlement in the field can solve the burning issue of seeking fairness within violations in the area of global health and also improve the effectiveness of the World Health Organization as a whole.

The Subject of the Migration Process as the Main Component of the Administrative and Legal Mechanism of Migration

One of the conditions for building the rule of law is to improve public management of migration processes in accordance with international standards. Migration is an integral part of any state. Migration processes can be affected by economic, political, social, demographic factors, environmental or man-made disasters. Not the least role in migration processes is played by military conflicts or religious or racial persecution. Migration is the movement of a person to change his or her place of residence or stay, involving the crossing of a state border or the boundaries of administrative-territorial units. The administrative and legal mechanism of migration covers the main elements of the migration process. The main one is the subject. Migrant as the subject is a person through whom migration relations arise. The system of public authorities is treated as a subject of regulation of migration processes on behalf of the state. It is the interaction of the subjects that makes migration relations real. The subjects of migration processes are: public authorities and administration, which are endowed with certain powers in the field of migration management. Individuals who have crossed administrative borders or changed their place of permanent residence can be citizens of Ukraine, citizens of foreign countries, stateless persons, refugees, internally displaced persons. Non-governmental organizations that do not have direct authority to manage migration processes and can have a direct impact on the integration of migrants into the new social environment. The ratio of executive, legislative and judicial power in the system of legal regulation of migration in Ukraine shows that the indispensable attribute of the state-power mechanism, built on the principles of separation of powers, is the executive power. It creates conditions for the implementation of the preventive function of the legislature, initiates changes in the current migration legislation; implements its own executive and administrative functions; supports the exercise of judicial functions by the judiciary and itself acts as an object of judicial influence. The analysis shows that geopolitical migration processes contribute to the expansion of the subjects of migration processes, and that one of the current problems of the modern system of administrative and legal regulation of migration processes is the need to reconcile the interests of the state, its citizens and migrants.

Magistratura y capitalismo: elementos para una crítica

El alcance de nuestro artículo es abordar la superposición entre el poder judicial y el capitalismo, a través de un análisis de las formas sociales y la ideología que caracterizan este modo de producción. A diferencia de los puntos de vista tradicionales, buscamos demostrar, con base en autores que se basan en una perspectiva crítica, la peculiaridad del poder judicial en el contexto de la sociedad capitalista, cuya especificidad no nos permite establecer puntos de contacto con las funciones judiciales presentes en los tiempos históricos pasados, pre-capitalista de carácter. Incluso abordaremos la originalidad de la forma procesal legal de nuestro tiempo, como resultado de la derivación secundaria entre la forma legal y la forma política estatal, que, a su vez, surgieron directamente de la forma mercantil. También abordaremos, aunque sea brevemente, los enfrentamientos en torno al tema del activismo judicial en Brasil. La base teórica de nuestro estudio radica, eminentemente, en la lectura marxista de la sociedad y el fenómeno legal.

The judge and social media: A balance between the judge's freedom of expression and his independence and impartiality

The world has witnessed in the last decade the creation and dissemination of social media websites, such as Facebook, twitter, YouTube, Linkedin, and a myriad of other forums and blogs that have revolutionized ways of communication among individuals on personal and professional level. Given the above, the following paper investigates the extent to which judges could use and interact on social media websites to communicate with the outside world. The importance of this research seems to rise in light of what has been recently revealed by some American and European statistics that have shown a significant increase in the number of judges using social media. In answering this inquiry, Scholars and Courts have been divided into two main groups; the first of which denies judges the right to join or interact on social media websites to preserve judges’ impartiality and independence. The second group acknowledged judges’ right to use social media, but subjects this right to a number of limitations and conditions imposed by the nature of the judicial function. Based on the above, the roadmap of this paper will be divided into two main sections; the first of which will examine arguments of proponents and opponents of judges’ right to use social media. The second will be dedicated to address limitations and restrictions on judges’ right to use social media by means of analyzing a number of courts’ decisions in comparative legal systems.

The Non-Professional Judge as a Component of Civic Culture in Poland

Abstract The objective of the paper is to present the role of the non-professional judge in Poland as an important manifestation of civic culture based on citizens’ activity in the sphere of justice among other things. The paper also highlights the importance of an appropriate selection of citizens who are to adjudicate and possibly place restrictions on access to judicial functions using the example of Polish law. The last part addresses the problem of the gradual reduction of the participation of lay judges in the Polish justice system and the controversial attempts to halt this trend, such as the introduction of lay judges to the Supreme Court and the start of discussions on the introduction of the justice of the peace to common courts.

Prezydia wojewódzkich rad narodowych jako instancje odwoławcze od orzeczeń karno-administracyjnych w latach 1951–1958 na przykładzie Prezydium Wojewódzkiej Rady Narodowej w Zielonej Górze

Bureau of provincial national councils as appeal instances against penal college in the years 1951–1957 on the example of the Presidium of the Provincial National Council in Zielona Góra 
 In 1951, the communist authorities introduced the institution of a penal college in Poland. This institution was modeled on the legislation in force in the Union of Soviet Socialist Republics. Colleges were not courts but performed judicial functions. The fi nal instance of appeal against the rulings of the colleges was the Presidium of the Provincial National Council. The article showed that a large part of the rulings issued by colleges in the Zielona Góra region in the years 1951–1957 were annulled by the Presidium. College rulings were often in confl ict with applicable law. 
 
 Die Präsidien der Nationalräte der Woiwodschaften als Berufungsinstanzen gegen die verwaltungsstrafrechtliche Rechtsprechung in den Jahren 1951–1958 am Beispiel des Präsidiums des Nationalrates der Woiwodschaft Grünberg [Zielona Góra]
 Im Jahre 1951 haben die kommunistischen Behörden in Polen die Institution eines Kollegiums für Ordnungswidrigkeiten eingeführt. Diese Institution wurde nach der in der Sowjetunion geltenden Gesetzgebung organisiert. Die Kollegien waren keine Gerichte, sie übten jedoch richterliche Funktionen aus. Die letzte Berufungsinstanz gegen die Beschlüsse der Kollegien war das Präsidium des Nationalrates der Woiwodschaft [Prezydium Wojewódzkiej Rady Narodowej]. In dem Beitrag wurde gezeigt, dass das Präsidium eine große Zahl der Entscheidungen der Kollegien, die in den Jahren 1951–1958 in der Woiwodschaft Grünberg ergangen, aufgehoben hatte. Die Entscheidungen der Kollegien standen oft im Widerspruch mit dem geltenden Recht.

The Davidic Restoration in Jeremiah 23:1–8 and Deuteronomy 17:14–20

Abstract In evaluating Jeremiah’s hope for a Davidic restoration, scholars have failed to note, or have made too little of, the links between Jer 23 and Deut 17:14–20. In both passages, the king has a restricted role, for example, in neither does the anticipated king have a military or salvific function. In the case of Jer 23:5, the only task specified for the promised king in David’s line is that “[he] shall execute justice and righteousness in the land.” This judicial function is understood in terms of the protection and support of the vulnerable social groups who are repeatedly identified in Deuteronomy as needing assistance. The only role assigned to the future king of Jer 23 is ensuring social justice, and this truncated model of kingship compared to the typical ANE pattern is the result of inner-biblical exegesis of the royal paradigm found in Deut 17:14–20.